House of Commons Hansard Debates for 2 Nov 1993

Mr. Anthony Steen (South Hams) : On a point of order, Mr. Deputy Speaker. About 10 days ago, my hon. Friend the Member for Weston-super-Mare (Sir J. Wiggin) raised

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the question why the police were no longer providing assistance to hon. Members who wished to get to a Division. Such assistance requires the police to be in Parliament square when a Division is called.

I raised this issue a few hours ago, but since then I have learnt that my hon. Friend raised it 10 days ago, but no action has been taken. I had difficulty getting to the House for the Division. Apparently, the new superintendent of police has decided that all police based in Parliament square should be removed when a Division is called and should not help hon. Members to get to the House to vote. That is in breach of our Sessional Orders

Mr. Deputy Speaker : Order. I am grateful to the hon. Gentleman, but he will realise that the debate is guillotined. I assure him that I will report the matter to Madam Speaker and ensure that it is looked at tomorrow morning.

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Mr. Steen : Further to that point of order, Mr. Deputy Speaker

Mr. Deputy Speaker : The crux of the issue is clear to me. It is an important issue, and I can give the hon. Gentleman full confidence that it will be looked at in detail tomorrow morning.

Amendments made : (b), in page 54, line 36, after 20' insert 21, 23'.

(c), in page 72, line 2, at end insert--

( ) every notice of a determination under section 22(4) above ;'.-- [Mr. Freeman.]

Lords Amendment No. 32 agreed to.

Lords amendment : No. 33, after clause 24, to insert the following new clause-- Fares and approved discount fare scheme--

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" .--(1) A franchise agreement may include provision with respect to the fares to be charged for travel by means of the franchised services.

(2) Subject to the other provisions of this Act, if it appears to the Franchising Director that the interests of persons who use, or who are likely to use, franchised services so require, he shall ensure that the franchise agreement in question contains any such provision as he may consider necessary for the purpose of securing that any fares, or any fares of a class or description, which are to be charged are, in his opinion, reasonable in all the circumstances of the case.

(3) Every franchise agreement shall include provision requiring the franchise operator--

((a) to participate in every approved discount fare scheme, ((b) to charge fares, in cases to which such a scheme applies, at rates which are not in excess of the levels or, as the case may be, the maximum levels set by the scheme, and

((c) otherwise to comply with the requirements of everysuch scheme,

if and to the extent that the franchised services are services, or services of a class or description, in relation to which theapproved discount fare scheme in question applies.

(4) The discount fare schemes which are to be regarded for the purposes of this section as "approved" are those which are fromtime to time approved for the purposes of this section by theFranchising Director.

(5) In this section--

"discount fare scheme" means any scheme for enabling persons who are young, elderly or disabled to travel by railway at discounted fares, subject to compliance withsuch conditions (if any) as may be imposed by or underthe scheme ;

"discounted fare" means a lower fare than the standard farefor the journey in question ;

"scheme" includes any agreement or arrangements."

Mr. Freeman : I beg to move, That this House doth agree with the Lords in the said amendment.

Mr. Deputy Speaker : With this we shall discuss the following amendments to the Lords amendment : (a), in line 13, at end insert and every appropriate travelcard scheme.'.

(b), in line 20, after scheme', insert Or travelcard scheme'. (c), in line 21, after fare', insert and travelcard'. (d), in line 32, at end insert

"travelcard scheme" means any scheme for enabling persons to travel by railway, or by railway and other specified forms of

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transport in a described geographical area, during a described period of time, subject to compliance with such conditions (if any) as may be imposed by or under the scheme.'.

and Lords amendment No. 37.

Mr. Freeman : Amendments Nos. 33 and 37 are important, and I shall be as clear and succinct as I can be in introducing them. They deal with the commitment on fares control that we gave on Report. That has resulted in the amendment, which gives the franchising director the power to ensure that franchise agreements contain provisions to ensure that all fares are reasonable. The Government believe that the amendment fulfils the criteria that we set out during the debate.

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The amendment also covers discount schemes for the young, the elderly and the disabled, and their protection under the franchise agreements.

The franchising director will have powers to safeguard travelcard schemes. My right hon. Friend has given a specific commitment in regard to London ; there are powers in relation to travelcard schemes outside London, but London is what is covered so far. We believe that broadly similar provisions could apply outside, but we have made no decision about that.

I hope that the House will agree that the amendments fulfil commitments, and are to be commended.

9.45 pm

Sir John Stanley (Tonbridge and Malling) : I should like to speak briefly to Lords amendment No. 33, with particular reference to subsection (2).

This is a significant amendment, which was not printed in the Bill at any time during its previous consideration by the House of Commons. As my right hon. Friend the Minister has said, it introduces for the first time a provision enabling the franchising director to ensure, in the interests of the travelling public, that fares in the franchised services remain reasonable.

It is also worth referring to the genealogy of the amendment. We have heard a great deal from Opposition Members about the alleged potential implications of the proposals for fares ; but the existence of this significant provision in the Bill owes nothing to the Opposition Front Bench--or, as it happens, to the Liberal Democrats. It was tabled on Report, as amendment No. 237, by my hon. Friends the Members for Ashford (Sir K. Speed), for Taunton (Mr. Nicholson), for Harrow, East (Mr. Dykes), for Lewes (Mr. Rathbone), for Ravensbourne (Sir J. Hunt), for Brighton, Kemptown (Mr. Bowden) and for Macclesfield (Mr. Winterton), and myself. On the following day, it was accepted in principle by my right hon. Friend.

I consider the amendment significant and substantive. I highlight just two features which illustrate that. First, there is the use of the phrase "shall ensure" in relation to the franchising director. The fact that that phrase is used--rather than the phrase "may ensure"--represents an important statutory obligation. The second important feature flows from that wording. By virtue of being statutory, the obligation is clearly justiciable--which means that, ultimately, any of the new consultative committees, any transport users association and, indeed, any individual member of the travelling public will have an opportunity to take legal action against the franchising director if he fails to discharge his obligation in relation to the reasonableness of fares.

I am delighted that this important amendment has been tabled, and I hope that the House will give it warm support.

Lords amendment agreed to.

Mr. Deputy Speaker : I understand that it may be the wish of the House to deal formally with Lords amendments Nos. 34 to 252, and to proceed to a debate on Lords amendment No. 253. If that is so, before I call the Minister to move formally to agree with the Lords amendments Nos. 34 to 252, I must draw the House's attention to the fact that privilege is involved in the Lords amendments Nos. 36, 40, 45, 56, 65, 83, 97 and 104.

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Lords amendments Nos. 34 to 252 agreed to.-- [Some with Special Entry.]

Clause 86

Employment

Lords amendment : No. 253, leave out Clause 86 and insert the following new Clause--

Assignment of employees to particular parts of undertakings. (" .

(1) Schemes may be made--

(a) assigning such qualifying employees, or qualifying employees of such a class or description, as may be specified in the scheme to such part of their employer's undertaking as may be so specified ; (b) modifying the terms and conditions of employment of those employees ; and

(c) providing for the payment of compensation to any of those employees by his employer in respect of any overall detriment incurred by the employee in consequence of any modifications made by the scheme to his terms and conditions of employment.

(2) A scheme shall be made only for the purpose of facilitating, or otherwise in contemplation of, or in connection with,--

(a) the disposal of the undertaking, or part of the undertaking, of the Board or of a wholly owned subsidiary of the Board ;

(b) the transfer, by virtue of a transfer scheme, of any property, rights or liabilities--

(i) from the Board or a wholly owned subsidiary of the Board to any such subsidiary or to a publicly owned railway company or a company wholly owned by the Franchising Director ; or

(ii) from a company wholly owned by the Franchising Director to another such company ;

(c) the provision of railway passenger services, or the operation of additional railway assets, under a franchise agreement, in circumstances where a previous franchise agreement relating to the provision of those services or the operation of those assets comes, or has come, to an end ;

(d) the performance of any duty imposed on the Franchising Director by any provision of Part I above to secure--

(i) the provision of any railway passenger services ;

(ii) the operation of any network or part of a network ; (iii) the operation of any station or light maintenance depot, or any part of a station or light maintenance depot ; or

(e) the exercise of the power conferred on the Franchising Director by section 26 above to secure the operation of any additional railway assets.

(3) The power to make a scheme shall be exercisable--

(a) by the Board, in respect of employees of the Board or of any wholly owned subsidiary of the Board ; or

(b) by the Franchising Director, in respect of employees of any company which is wholly owned by the Franchising Director. (4) Where a scheme modifies the terms and conditions of employment of any person, the person's terms and conditions of employment after the modification takes effect must overall, and taking account of the amount or value of any compensation payable to him by virtue of subsection (1)(c) above in respect of any such detriment as is there mentioned, be no less favourable to him than his terms and conditions of employment before the modification takes effect.

(5) The duty imposed on an employer by section 4 of the Employment Protection (Consolidation) Act 1978 (requirement for written statement in respect of certain changes relating to an employee's employment) shall extend to all of the modifications made by a scheme to a qualifying employee's terms and conditions of employment, as if those modifications were changes required to be dealt with in a written statement under that section.

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(6) If any qualifying employee whose terms and conditions of employment are modified by a scheme is aggrieved--

(a) at the provisions made by the scheme with respect to the payment of compensation, so far as applicable in his case, or (b) at the fact that the scheme does not make any such provision, he may make a written complaint to the maker of the scheme not later than twelve weeks after the date of issue of the written statement required by section 4 of the Employment Protection (Consolidation) Act 1978 in consequence of the modifications made by the scheme in the qualifying employee's terms and conditions of employment.

(7) Any complaint under subsection (6) above shall be referred to, and determined by, such arbitrator as may be agreed by the qualifying employee and the person to whom the complaint was made or, at the request of either of them, by a panel of three arbitrators appointed by the Secretary of State and consisting of--

(a) a person who appears to the Secretary of State to be representative of employers in the railway industry ;

(b) a person who appears to the Secretary of State to be representative of employees in the railway industry ; and (c) an independent chairman.

(8) A scheme may make such incidental, consequential, supplemental or transitional provision as appears necessary or expedient to the person making the scheme.

(9) A scheme may make different provision for different qualifying employees or for qualifying employees of different classes or descriptions.

(10) A scheme shall not come into force unless it has been approved by the Secretary of State or until such date as the Secretary of State may, after consultation with the maker of the scheme, specify for the purpose in giving his approval.

(11) In the application of this section in relation to Scotland, any reference to an arbitrator shall be taken as a reference to an arbiter.

(12) In the application of this section to Northern Ireland, for any reference to section 4 of the Employment Protection (Consolidation) Act 1978 there shall be substituted a reference to section 4(4) to (6B) of the Contracts of Employment and Redundancy Payments Act (Northern Ireland) 1965.

(13) In this section--

"qualifying employee", in the case of any scheme, means a person who, immediately before the coming into force of that scheme-- (a) is an employee of--

(i) the Board ;

(ii) a wholly owned subsidiary of the Board ; or

(iii) a company which is wholly owned by the Franchising Director ; and

(b) is not assigned solely to duties in that part of his employer's undertaking to which he is, or is to be, assigned by that scheme ; "scheme" means a scheme under this section ;

and expressions used in this section and in Part I above have the same meaning in this section as they have in that Part.")

Mr. Freeman : I beg to move, That this House doth agree with the Lords in the said amendment.

Mr. Deputy Speaker : I understand that the Opposition do not want to move amendments (a) and (b).

Mr. Freeman : For the convenience of the House I shall make a few comments about employment and the provisions of TUPE. Several trade unions have expressed concerns about the interpretation of this group of amendments.

I shall mention two basic points. First of all, there is no doubt that the acquired rights directive and the provisions of TUPE apply to the railway industry. That is Government amendment No. 317, and there is enshrined in the Bill a

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clear reference to the application of TUPE. There is no doubt that, in a transfer of undertaking from one ownership to another, whichever undertaking it is, the provisions of TUPE apply. That protects the terms and conditions of employment.

Mr. George Stevenson (Stoke-on-Trent, South) : What might those conditions be at the time of transfer?

Mr. Freeman : The terms and conditions of employment under the TUPE regulations include, obviously, the pay and conditions, the hours of work and the conditions of work. They do not include pension rights. They apply throughout industry. The railways are not unique. It is not a matter for me, as a Transport Minister, to define the acquired rights directive or the provisions of TUPE, but they will apply in any change of ownership in the railway industry.

Mrs. Gwyneth Dunwoody (Crewe and Nantwich) : In a case in my constituency, various people were informed that, unless they agreed to transfer automatically, they would not only lose their employment but would be at considerable risk in relation to any redundancy payments. Will the Minister give us an undertaking that any railwayman or woman who is required automatically to transfer to another private undertaking will not be penalised with new contracts and new terms of employment, but will, if he or she wishes, be able to retain his or her full entitlement at that moment and for his or her continuing contract?

Mr. Freeman : I can give that assurance, because the law requires those terms and conditions of employment to transfer cleanly, without any amendment or compromise. What happens to the terms and conditions thereafter is a matter for voluntary negotiation between the employee and the employer. The hon. Lady shakes her head, but I am citing the law. I can give the hon. Lady the assurance that the provisions of TUPE, which apply whether it is Marks and Spencer, Unilever, ICI or the railway industry, are clear and unimpeded. The Bill does nothing about their application.

The second--and, I suspect, more important--subject of the debate is Government amendment No. 253. That is where the misunderstandings have arisen. I shall seek to allay them. Government amendment No. 253 is new clause 86. That allows British Rail or the franchising director to remove uncertainties where there is double employment in British Rail at present between different divisions of British Rail--that is to say, the individual is not wholly employed. I cite the example of drivers who drive both the Gatwick express, which is InterCity, and trains on Network SouthEast. The driver may spend 50 per cent. of his time driving one set of trains and 50 per cent. the other. We are advised that, as the driver in that case is not wholly employed by one enterprise in British Rail, if there is a transfer to a private sector franchisee, the provisions of TUPE might not apply. That is the legal advice that is available to the Department of Transport. What clause 86 does, therefore, is to enable individual employees who are working for two distinct businesses to be assigned to one of them.

I hope that the assignment will be made with the voluntary agreement of the individuals involved and that agreements with the trade unions about the negotiating

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procedures that should be followed will be honoured. Once the assignment is made, without question the provisions of TUPE will apply when the undertaking is transferred--for example, from complete ownership by British Rail to a franchising company.

New clause 86 makes it clear that, if it could be argued that an individual's terms and conditions of work had been changed by the assignment, there is a process for compensation and independent arbitration to deal with any dispute between British Rail and the individual involved. I think that that is fair, and I hope that I have cleared up any misunderstandings.

Mr. Prescott rose--

Mr. Wilson rose--

Mr. Prescott : There seems to be a bit of competition.

We do not wish to take a great deal of time on the amendment, but having discussed amendments nos. 6 and 31, we have skipped over important debates on passenger transport executives, competition, the disabled, codes of practice and consultative committees, to reach the 18th debate. The others were all important amendments, but due to the guillotine we have had to miss them. However, it is important to place on record the fact that we have missed them out and have begun an important debate on TUPE.

The amendment may seem to be technical--indeed, it is often introduced as a technical amendment--but its implications are considerable and complex. No doubt in the other job that I shall have to do shortly I shall have to understand the subject better than I do at present.

The subject that is causing concern has been mentioned by the Minister and arises directly from a change since the issue was first mentioned in Committee by my hon. Friend the Member for Cunninghame, North (Mr. Wilson). Then, the Government made it clear that they intended to include in the Railways Bill--in clause 82, I believe--a statutory provision to ensure that all transfers would be covered. In the debate, it was said that the present trade union regulations--TUPE--would still apply. However, the Minister still felt that it was important to contain the provision in the Bill. He said :

"Clause 82 has been included in the Railways Bill to apply TUPE to all kinds of transfers resulting from the privatisation of BR. Certain transfers may be of undertakings forming part of BR that are not properly regarded as commercial. Other transfers may include a collection of property rights and liabilities, which would not normally be regarded as an undertaking, because, for example, they are not a going concern."--[ Official Report, Standing Committee B, 11 March 1993 ; c. 773.]

The Minister was concerned that in some operations within British Rail, commercial and non-commercial, workers would normally be transferred from the various organisations. Reorganisation has created problems involving identifying employees with specific parts of the operation. The Minister mentioned the Gatwick operation, where some drivers use 30 per cent. of their time on the Gatwick run and are unable to work on other parts of the railway network. The problem is whether those workers should be identified with a specific company.

I think that one case was known as the Butts End case. The European Court identified cases in which people had not worked for a company long enough to qualify as full-time workers with the company. Many such examples occur when an organisation such as British Rail is split up

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into different operations. Will ticket sellers be selling tickets for Regional Railways or InterCity? Who are they employed by? Unless those sellers are placed in separate ticket offices--as has recently occurred at Victoria in relation to the Gatwick service-- difficulties are created.

No doubt exists about employees who are directly employed full time in a company, as any transfer from that company to another company would be covered by the regulations, but clause 82 and the proposals in the Lords amendments have caused considerable concern. The central issue involves employment rights such as conditions, redundancy rights, and even concessionary travel--another issue addressed by the Minister in Committee- -which constitute an individual's property and employment rights.

I think that the Minister hopes that he can make it clear, through the amendment, that those people who may be caught between one situation and another will now be identified as working with one employee--

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